Harjinder Kumar And Nar vs Dda And Anr
2013 Latest Caselaw 1800 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: 22.04.2013

+      W.P.(C) 1307/2011

       HARJINDER KUMAR AND NAR                         ..... Petitioner
                    Through: Mr Sanjiv Kakra and Mr Irfan Ahmed, Advs.

                           versus

       DDA AND ANR                                       ..... Respondents
                           Through: Dr. Indra Pratap Singh, Adv for DDA
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                           JUDGMENT

V.K.JAIN, J. (ORAL)

1. The petitioner No.1 before this Court claims to be owner of the basement

and ground floor of Property No. RR-11, Mianwali Nagar, Rohtak Road, New

Delhi, whereas petitioner No. 2 claims to be owner of a part of its third floor. The

respondent-DDA issued notice dated 15.03.2010 to petitioner No. 1 Harjinder

Kumar, alleging the following unauthorized constructions in the above-referred

building:

"1. Construction of property is not as per sanction plan and violative of Master Plan.

2. Construction is more than sanction.

3. Basement entry is from front set back.

4. Rear set back found covered and construction of steps at front set back.

               5.   Coverage at all            floors      is    more      than
                    permissible/sanction.

               6.   Overall FAR         is   more       than    sanction   and
                    permissible.

7. Parking space at left side set back. Encroached partly.

8. Height of building is more than sanctioned.

9. A restaurant is running at entire ground floor."

2. The petitioner No. 1 was directed to discontinue the illegal and unauthorized

development in the aforesaid building and was also called upon to show-cause why

an order for demolition of the unauthorized development be not passed and the

same be not directed to be sealed under Section 31A of Delhi Development Act.

The petitioner No. 1 filed reply to the show-cause notice on 16.08.2010. Vide

communication dated 11.02.2011, addressed to both the petitioners, Deputy

Director (Building) passed an order directing sealing of the unauthorized

development and for removal of the same. Being aggrieved from the aforesaid

order, the petitioners have filed this writ petition.

3. When it is pointed out to the learned counsel for the petitioners that the order

passed by the Deputy Director (Building) of DDA is appealable before Appellate

Tribunal under Section 31C of Delhi Development Act, he submits that since the

post of the Appellate Tribunal was lying vacant at the time the aforesaid order was

passed, the petitioners could not avail the remedy of statutory appeal. The learned

counsel for the petitioner again states that though the appeals were filed against the

aforesaid order since there was no Presiding Officer appointed for the said Tribunal

at the time the appeal came to be filed, the petitioners were compelled to approach

this Court by way of this writ petition.

4. Admittedly, Presiding Officer for the said Tribunal has since been appointed

and the Tribunal is now functional. Therefore, the petitioners should now pursue

the appeal which they have already filed against the order of sealing and demolition

passed by the Deputy Director of DDA.

5. The learned counsel for the petitioners submits that in fact there is no

unauthorized construction either in the basement or on the ground floor and in case

DDA finds any such unauthorized construction, the petitioners would have no

objection to demolition of such a construction. Since the appeal filed by the

petitioner is pending before the Tribunal, all these issues need to be agitated before

Tribunal only. It would not be appropriate for this Court, in exercise of its

extraordinary jurisdiction under Article 226 of the Constitution, to go into these

disputed questions of fact and take a view, either way, particularly when the appeal

filed by the petitioners is pending before the Tribunal.

6. The learned counsel for the petitioners now states that as per the instructions

given to him just now, the appeal filed by the petitioners was disposed of on

account of pendency of the writ petition. If that was the sole ground for dismissal

of the appeals, the petitioners would be at liberty to approach the Tribunal for

revival of the appeal.

For the reasons stated hereinabove, the writ petition is hereby dismissed.

There shall be no order as to costs.

Dasti.

V.K. JAIN, J

APRIL 22, 2013 BG